Excerpt:.....approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. it appears strange that the complainant who initiated criminal proceedings has not thought fit to complain against the order of acquittal words used are 'as the dues under the bond have the state government appealed against that decision. when the matter was taken up to the court of the judicial commissioner in revision that court refused to interfere with the acquittal order and held that it would not interfere unless the trial could be shown to have been illegal, or so radically and incurably irregular as, in fact, to have occasioned a failure of justice......party as the allegation made by him in the plaint in 1936 was intentionally false. on appeal the learned sessions judge came to a different conclusion and set aside the conviction and sentence passed on the opposite party. the learned sessions judge held that there was no evidence in the case to establish which of the two contradictory statements was true. he further held that the allegation in the plaint was carelessly made and cannot be said to have been intentionally false.the learned judge was also of opinion that the allegation of oral partition was not necessary for getting a decree in the money suit; and it is, significant that this allegation was not spoken to by the opposite party in the evidence recorded in that suit.3. it appears strange that the complainant who initiated.....

Judgment:ORDER

Panigrahi, C.J.

1. This is a revision directed against an order of acquittal passed by the Sessions Judge, Sambalpur, in an appeal against the conviction of the opposite party, Gouri Shankar Misra, who is said to be a Pleader of Sambalpur. The facts giving rise to this petition are that the opposite party filed Money Suit No. 213 of 1936 in the Court of the Munsiff, Sambalpur, on the foot of a money-bond, Ext. A-1, dated 22-6-32, against one Kruttibas Naik who is said to be his maternal uncle. The debt was originally contracted by Kruttibas Naik and his brother from the father of the opposite party. One of the debtors paid up his share of the debt and for the share of Kruttibas a fresh bond was taken in the name of the opposite party. The bond recites :

'Prom your father, I and my brother had incurred a loan of Rs. 500/- by executing a bond, towards the interest of which we had paid Rs. 120/-. Rs. 366/- is the share payable by me, being half of the total dues thereunder. As the dues under that bond have fallen to your share and as I am unable to repay the same, I execute this bond acknowledging my liability to pay Rs. 366/-. I stipulate to pay you within one year the amount with interest at 6 per cent. per annum.'

The opposite party filed a suit for recovery of this amount and it was alleged in the plaint that Ext. A was allotted to the share of the plaintiff at an earlier partition between himself and his father,

2. Eleven years later, that is in 1947, the opposite party and his father R.N. Misra instituted Title Suit 11 of 1947 in the Court of the Subordinate Judge against the present petitioner and another person for a declaration that they had the sole right to collect kendu leaves within a particular area. The contention raised by the petitioner who was the defendant in that suit is that the suit was hit by Section 69, Partnership Act, as the plaintiffs were divided in status. The opposite party examined himself in the suit and stated on oath that there was no partition, in fact, between him and his father and that the allegation made by him in the plaint of the year 1936 was made only for the purpose of that suit as he was under the belief that the suit was to end in a compromise. It is due to the apparent contradiction between the pleading in the plaint of 1936 and the deposition of the opposite party in 1949 in the later Title Suit that the petitioner ventured to file a petition under Section 476, Cr. P. C., for prosecuting the opposite party for perjury.

That petition ultimately came up to the High Court and my learned brother Narasimham J. sanctioned the prosecution of the opposite party in -- 'Civil Criminal Appeal No. 1 of 1951, (Ori) (A)', in consequence of which the Registrar filed a complaint in the Court of the Subdivisional Magistrate, Sadar Sambalpur. The learned Magistrate found that an offence under Section 193, I. P. C., had been made out against the opposite party as the allegation made by him in the plaint in 1936 was intentionally false. On appeal the learned Sessions Judge came to a different conclusion and set aside the conviction and sentence passed on the opposite party. The learned Sessions Judge held that there was no evidence in the case to establish which of the two contradictory statements was true. He further held that the allegation in the plaint was carelessly made and cannot be said to have been intentionally false.

The learned Judge was also of opinion that the allegation of oral partition was not necessary for getting a decree in the money suit; and it is, significant that this allegation was not spoken to by the opposite party in the evidence recorded in that suit.

3. It appears strange that the complainant who initiated criminal proceedings has not thought fit to complain against the order of acquittal words used are 'as the dues under the bond have the State Government appealed against that decision. It is at the instance of a third party that this matter has been brought to the notice of this Court. I should be extremely reluctant to interfere in revision and set aside an order of acquittal which would inevitably lead to a re-trial of the opposite party. Having regard to the fact that the allegation about the oral partition was made over 17 years ago it cannot be said to be in the interests of public justice that the opposite party should be put to the harassment of a new trial at this stage. Apart from that there was sufficient justification, in my opinion, for the view taken by the learned Sessions Judge.

The bond, Ext. A, itself recites that the debt was payable to the opposite party; the express words used are 'as the dues under the bond have fallen to your share'. That is a recital made by the debtor in favour of the creditor and the pleading should necessarily accord with the terms of the contract. It appears to me, therefore, that there could have been no intention on the part of the opposite party to make a false statement to get an undue advantage over the debtor or to mislead the Court. The father of the opposite party was made a defendant. Whatever the truth may be, the facts were all known to the parties and were in accordance with the recitals in the bond. In these circumstances, I am not inclined to regard the allegation about the oral partition, made in the plaint in 1936, as intentionally false so as to attract the operation of Section 193, I. P. C.

4. It was urged at the Bar by learned counsel for the petitioner that a false pleading is hit by Section 191, I. P. C. and the cases reported in -- 'Raja Ram v. Emperor', AIR 1929 All 936 (B); --'Emperor v. Padam Singh', AIR 1930 All 490 (C); -- 'Durga Prasad v. Emperor', AIR 1933 All 318 (D), were cited in support. On the other side also, there is a line of cases which take the contrary view. As was observed in -- 'Rashbehari Roy v. Emperor', AIR 1930 Cal 639 (E) :

'in many cases persons in verifying pleadings are often found to say something which is not strictly true, but by such action they do not render themselves liable for prosecution for perjury for making a false statement. This by itself does not constitute an offence under Section 193, I. P. C.'

In -- 'Sher Khan v. Anwar Khan', AIR 1927 Nag 170 (P), the plaintiff gave a wrong date of the transaction between him and the defendant and affirmed in his oral statement the correctness of the date wrongly given. On a prosecution being filed at the instance of the Judicial commissioner's Court, the plaintiff was convicted by the trial Court for perjury under Section 193, I, P. C. But on appeal the Sessions Judge reversed this order. When the matter was taken up to the Court of the Judicial Commissioner in revision that Court refused to interfere with the acquittal order and held that it would not interfere unless the trial could be shown to have been illegal, or so radically and incurably irregular as, in fact, to have occasioned a failure of justice. In a recent decision of the Supreme Court reported in -- 'Stephens v. Nosibollah', AIR 1951 SC 196 (G), the Supreme Court laid down that the revisional jurisdiction of the High Court is not to be ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record.

In a later case of the Supreme Court reported in -- 'Ugendra Nath v. Potai Lal', AIR 1951 SC 316 (H), the same principle of law was reiterated and it was held that the High Court cannot, in the absence of any error on a point of law reappraise the evidence and reverse the finding of fact on which the acquittal is based. I am unable to discover any such error either of law or of appraisal of evidence by the lower appellate Court. I would, therefore, uphold the order of acquittal passed by the learned Sessions Judge and dismiss this petition.